Legitimacy, Legality, Legacy, and the Life of Democracy

The Trump Administration challenged notions of good governance. It challenged our expectation of majoritarian legitimacy to the extent only a minority of voters elected President Donald Trump in 2016. It challenged our demands for reasoned decision-making insofar as the President sought to dismantle the administrative state and govern by fiat. It challenged our expectation of checks and balances in the way it approached appointments and removals to accumulate power at the expense of congressional design. These challenges sound in different legal theories, but they all reflect shattered expectations of good governance. And yet, the most lasting legacy of the Trump Administration may have nothing to do with governing. It is hard to guess how historians will view this period, but I write and revise this essay in December 2020 and Spring 2021, having watched the most flamboyant, stunning, and blatant attempt to prostrate the United States’ electoral system.4 This flagging has raised concerns about the continuing legitimacy of democracy.5 But this concern reflects a simplistic and mistaken view of democracy. In fact, democracy remains the solution—not the problem. The problem lies in the fact that elections alone do not make a democracy. The solution lies in the complexity of our constitutional arrangement, which despite staggeringly selfish attacks on the electoral process, maintains some stability

Raisins and Resilience: Elaborating Home\u27s Compensation Analysis with an Eye to Coastal Climate Change Adaptation

The State of New Jersey, the Borough of Harvey Cedars, and the United States Army Corps of Engineers were all preparing for an event like Hurricane Sandy years before the 2012 super-storm made landfall along the Mid-Atlantic coast. The governments began, for instance, a major dune restoration project in 2005 in order to protect the New Jersey coast from massive storm surges that could destroy homes and businesses. To carry out the effort, the local governments sought to purchase the right to build along the seaward portion of property owners\u27 land, and would then construct roughly twenty-foot-high, thirty-foot-wide dunes. If the government and the landowner could not agree on a price or the landowner refused to sell, the government would acquire the necessary strip of property using eminent domain: the right of government to take private property for public use as long as it offers just compensation. This Article is about the proper way to calculate just compensation when government partially takes private property for a use that provides a degree of benefit to the remaining property

The Death of Administrative Democracy

Everybody agrees. Everybody is certain. There are no elected bureaucrats.That pervasive certainty must come as quite a surprise to elected bureaucrats.The federal bureaucracy presents examples of administrative elections, but the most significant is the United States Department of Agriculture’s elected farmer committees. There are over 7,500 elected farmers sitting on over 2,000 committees, and these committees carry out paradigmatic administrative duties including policymaking and adjudication.Taking for granted that administrators are unelected, judges have shaped an ascendant doctrine of Presidentialism. This doctrine presumes that the administrative state is only legitimate insofar as it is under the direct control of the President because the President is electorally accountable. Presidentialist doctrine is based on majoritarian legitimacy. Surprisingly, were Presidentialist doctrine applied to the majoritarian, elected, farmer committees, it would strike them down because they are tied directly to voters rather than indirectly through the President. This suggests a weakness in Presidentialism: The theory relies on administrative majoritarianism but rejects electoral authority untethered from the President.This article argues that both Presidentialism and electoral administration are flawed. Both rely on a one-dimensional oversimplification of democracy. Rather than tidying-up democracy by fitting it into mere majoritarianism, judges and scholars should focus on a more robust notion of democracy animated by, and accountable through, elections, but also fundamentally reliant individual participation, reason giving, and deliberation. This ideal of democracy has a long pedigree, but the novel consideration of electoral administration provides new insights and support

A Warning to States — Accepting this Invitation May Be Hazardous to Your Health (Safety, and Public Welfare): An Analysis of Post-Kelo

Focusing on Delaware, this article will argue that the United States Supreme Court\u27s decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as a warning to the states generally that many seemingly innocuous clauses in their responsive legislation could have substantial consequences if not carefully considered

Environmental Governance at the Edge of Democracy

Private environmental governance describes the affirmative efforts of private organizations to deliver public environmental goals, such as climate change mitigation, without government leadership or control. The scholarship on private environmental governance has grown quickly over its short life, but has largely described, catalogued, and quantified private environmental governance. This article begins the project of more fully theorizing private environmental governance. It is the first to explore and critique its political and democratic roles and responsibilities. This article argues that despite the promise that private environmental governance is private and therefore “beyond politics,” it in fact calls loudly for democratic consideration. Private environmental governance is an effective instrument for advancing environmental protection, but the reason it is instrumental is because it wields substantial coercive power over the global environment and human relationships with the environment. Unlike public governance, private governance makes fast and dramatic strides because it wields this coercive power without the procedural burdens of the state. But procedural burdens are not just inefficiencies, they are often important parts of the practice of democracy. Many factors can recommend democratic consideration in place of private fiat. In the case of private environmental governance, democratic practice is necessary for at least three reasons. First, the endeavor is political in the way it uses power and displaces public law. Second, private environmental governance assumes significant conclusions about whether and how to protect the environment. These conclusions should result from public choice, not private will. Third, substantial power imbalances allow private governance to interfere with and dominate individual interests. The power of private firms to encroach on individual liberty is the reason their environmental governance strategies work. Democracy is the forum to authorize, redistribute, or revoke that power. After making the case that private environmental governance should not escape democratic reflection simply because of its private designation, this article concludes that further careful study is necessary to determine whether private environmental governance institutions provide sufficient dimensions of democracy. Private environmental governance not only risks governing without democracy, it risks lulling people into a sense that the messy politics of public governance are no longer necessary. Closer attention to private environmental governance’s democratic credentials can therefore improve private governance and help maintain a functioning state

Value Hypocrisy and Policy Sincerity: A Food Law Case Study

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to rhetoric. This scholarship, in other words, makes room for considerations of hypocrisy in policymaking. New psychological research reinforces that people hate hypocrisy and suggests that the hatred is not because hypocrisy is ineffective, or because hypocrisy demonstrates any specific instrumental weakness. Hypocrisy is condemned and unsatisfying because it is an intentional disconnect between the values signaled in words and achieved in deeds. This recognition is equally important in policy analysis. This Article argues, for the first time, that the concept of hypocrisy is a useful analytical tool in policymaking and policy advocacy. Using a new framework of “value hypocrisy”—in which the public values that motivate a specific policy goal are not embodied in the policy instrument—and “policy sincerity”—in which a policy instrument does actualize motivating values—this Article makes two points about the connection between policy instruments and their motivating values. First, and most importantly, analysis of policy instrument choice tends to focus on the ability of the instrument to achieve the policy goal, but the non-instrumental nature of the policy tool, its value sincerity, deserves increased attention. That is to say, an instrument that can achieve a stated goal may nevertheless be suboptimal if it does not fit with the values that motivate the policy goal in the first place. Given the unique importance of food to both our bare survival and frivolous indulgences, this Article introduces hypocrisy as an analytical tool for instrument choice by using a food law and policy case study. This Article’s second point is that common law litigation deserves more consideration as a food law and policy instrument because, in addition to consequential benefits of the common law, the common law fits well with the values such as community empowerment, participatory decisionmaking, and progressive traditionalism, that motivate the food movement. The common law is individualistic and collective, public and private, just like eating

Board Rooms and Jail Cells- Assessing NGO Approaches to Private Environmental Governance

Staff of the Nature Conservancy often find themselves in corporate board rooms. Staff of Greenpeace often find themselves in jail cells. The Nature Conservancy (TNC) prides itself on its non-confrontational, collaborative deal making, partnering closely with corporations like chemical giant Dow and agricultural lightning rod Monsanto. Both Dow and Monsanto, in fact, are members of TNC’s Business Council along with the likes of BP, Shell, and Cargill. Greenpeace, on the other hand, prides itself on direct action, civil disobedience, and non-violent confrontation. Greenpeace has launched combative operations against Dow, Monsanto, and other TNC collaborators. While business partners praise TNC’s cooperative efforts, they resist Greenpeace’s strategies, which have been the subject of recent litigation accusing Greenpeace of, among other things, racketeering, conspiracy, and defamation. Given the stark differences in personality and reputation, when it comes to environmental protection instrument choice it is startling to realize that Greenpeace and TNC are nearly indistinguishable.Both TNC and Greenpeace are, fundamentally, proponents of Private Environmental Governance. Private Environmental Governance is the striving for public goals through private endeavor. Through private land conservation and corporate collaborations, TNC is squarely engaged in private environmental governance. Though less obviously so, through public pressure on private companies, reputational campaigns, and consumer persuasion, Greenpeace too seeks to change the market and the behavior of private companies to achieve environmental goals without government involvement.The literature on Private Environmental Governance has been explicit that non-governmental organizations (NGOs) like TNC and Greenpeace have an important role to play, but there is little depth to this assertion. This article will add depth, by examining the efforts of NGOs in environmental instrument selection and implementation. This article offers a novel typology of environmental NGOs based on four categories: (1) Overarching Goal; (2) Governance Philosophy; (3) Advocacy Targets; and (4) Key Tactics. The article then overlays these categories on a diverse range of environmental groups.Critics often toss environmental NGOs into the single basket of Big Green. But this closer examination shows some important distinctions, including significant differences in the way these groups approach Private Environmental Governance.Across the legal literature there is a dearth of research on how advocacy organizations select and influence environmental protection instruments in the public and private spheres. Private Environmental Governance, with its principle focus on private actors rather than government entities, has recognized the importance of this inquiry, and this article opens the doors for a more searching and robust consideration of the role of NGOs in influencing public and private environmental policy

The Life of Administrative Democracy

Imagine if Congress, the President, and the industries they hoped to regulate all decided that neither politically isolated bureaucrats nor a popularly sanctioned President should wield the power to administer Congress’ laws, to make legislative-type policy, to enforce that policy, and to adjudicate disputes under it. Imagine if there were another experiment, one that has persisted, but few have noticed.Imagine no longer. Overlooked by most, there is a model for federal administration that does not rely on isolated administrators or Presidential control, but instead on elected bureaucrats. Today, the United States Department of Agriculture houses over 7,500 elected farmer-bureaucrats sitting on over 2,000 administrative committees. This article explores the elected farmer committees in detail and provides the first and only complete look at the committees in the legal literature.Providing local personnel in every corner of the country, the elected farmer committees began during the New Deal as an instrument to help transition the United States Department of Agriculture from an education and research organization into the vast regulatory agency that it is today. Though the power of the committees has shifted over the decades, they are indeed imbued with important administrative powers including policymaking, enforcement, and adjudication. The best evidence of their power is their forgotten role in the famous case Wickard v. Filburn. That case is remembered as a watershed for the Commerce Clause, but it began with an elected farmer committee in Ohio setting limits on Farmer Filburn’s wheat production, discovering that he was overproducing, and then levying the fine that Filburn challenged all the way to the Supreme Court and first year Constitutional Law classes.It is not, of course, unusual that the actions of an administrative agency would lead to a long and important court battle. What is unusual is that the farmer committees are elected. Why did the New Deal leaders at USDA decide to rely on elected administrators instead of typical political appointment? This article argues that a combination of mostly unstated ideological commitments drove the unusual choice, including a Jeffersonian idealism about the virtuosity of farmers; a hope of instilling a more civic and deliberative democracy throughout farm country; corporatist and pluralist political cynicism; and patent elitism and racism.Ultimately, this article argues that despite the lofty hopes of those who birthed the elected farmer committees over 80 years ago, the ideal of administrative democracy has tended more towards its worst traits and has failed to live up to its best because it has relied too heavily on majoritarian decisionmaking at the expense of thoughtful reason giving and meaningful deliberation. The elected farmer committees, then, provide administrative law a new relief against which to judge what is best and worst about the standard technocratic and Presidentialist models of administrative law

Pennsylvania Gas: Trusts, Takings, and Judicial Temperaments

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed the Takings Clause of the Fifth Amendment and forever changed property regulation. In 2012, a series of acts of the Pennsylvania General Assembly seeking to capitalize on the hydraulic fracturing boom triggered a fiscal fight that resulted in the Pennsylvania Supreme Court’s 2017 decision in Pennsylvania Env. Def. Foundation v. Commonwealth, which gave self-enforcing legal meaning to the Environmental Rights Amendment of the Pennsylvania Constitution. This latter decisions both shifted Pennsylvania’s administrative and legislative law landscapes and may provide a more meaningful legal framework for constitutional environmental protection than currently exists in the United States. This paper compares and contrasts these two cases, which have so much and so little in common. The paper highlights a series of similarities and offers lessons about doctrinal change, environmental law, and advocacy strategy. In particular, this paper will focus on the way that case outcomes and legal reasoning can conflict. Penn Coal is a triumph of economic liberalism and a boon to the conservative property rights movement. Nevertheless, and has been noted elsewhere, it is an example of Justice Holmes’ famous progressive jurisprudence. Conversely, Pennsylvania Env. Def. Foundation is an unparalleled win for environmental protection, but it evidences a classically conservative approach to legal reasoning. The paper will conclude with an attempt to understand what we mean by the terms conservative, moderate, and progressive in the context of environmental law